DOCKET NO. A-2440-12T2
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Cindi Collins, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-210-01.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
Cindi Collins, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney). PER CURIAM
J.E.D. is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntarily civil commitment pursuant to the Sexually Violent Predator Act (the SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from the December 12, 2012, order that continued his commitment after a hearing and set the date for his next annual review as November 28, 2013. J.E.D. argues that the State failed to present sufficient evidence demonstrating he continues to "suffer from a mental abnormality or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. In particular, J.E.D. contends the judge erred in crediting the testimony of the State's expert.
Alternatively, J.E.D. contends that we should remand the matter for the entry of an order compelling the STU to implement a discharge plan in anticipation of his release. After due consideration of the record and applicable legal standards, we affirm.
J.E.D. was initially committed by order of November 9, 2001; a judgment declaring he was a sexually violent predator in need of involuntary commitment followed on March 26, 2002. A series of orders have continued his commitment thereafter, several of which we affirmed on appeal. See In re Civil Commitment of J.E.D., No. A-6164-02 (App. Div. June 29, 2004); In re Civil Commitment of J.E.D., No. A-4425-04 (App. Div. Dec. 21, 2005); In re Civil Commitment of J.E.D., No. A-2692-06 (App. Div. May 31, 2007); In re Civil Commitment of J.E.D., No. A-0053-08 (App. Div. Jan. 2, 2009); In re Civil Commitment of J.E.D., No. A-1141-10 (App. Div. Apr. 21, 2011).
The hearing that gave rise to the order under review occurred on December 12, 2012. Doctor Pogos Voskanian, a psychiatrist, testified regarding his interview of J.E.D. on November 30, 2012. Voskanian concluded that J.E.D. was not "doing well in the treatment currently[,]" and that he "continue[d] to display significant impulsive behaviors over the past two years." Voskanian cited an incident earlier in the year during which J.E.D. and another resident "were simultaneously masturbating while watching each other bathe." This followed an incident in 2010 during which J.E.D. "slap[ed] another resident's buttocks."
Voskanian diagnosed J.E.D. with "Pedophilia," and "a learning disorder," and he indicated that a "developmental disorder" needed to be ruled out. Voskanian further diagnosed J.E.D. with "Personality Disorder NOS," with displays of "narcissistic traits" and "problems with self[-]esteem." Voskanian opined that these conditions "predispose [J.E.D.] to sexual violence," he would "have serious difficulty controlling his sexual offending behavior," and J.E.D. "remains at high risk" to sexually reoffend.
Nicole Paolillo, a staff psychologist and member of J.E.D.'s Treatment Progress Review Committee (TPRC) at the STU also testified. J.E.D. had been in Phase Three treatment for "at least six years." Paolillo noted that J.E.D. had been "generally consistent in treatment," but "the treatment team did have some concerns." She noted that J.E.D. "was failing to address the sex offender dynamics." Regarding the masturbatory incident with a fellow resident, Paolillo noted, "It's just not going to bode well for his success in the community if he acts upon his urges, decides which rules he's going to pick and to follow . . . ."
Paolillo stated that J.E.D.'s Static-99R test score placed him in the "low to moderate rate" of risk to reoffend. Her diagnoses mirrored those reached by Voskanian. Although J.E.D. had "done quite a bit of work" during treatment sessions, Paolillo acknowledged "he's not psychologically prepared to face the stressors that a discharge would involve."
Christopher Lorah, a forensic psychologist, testified on behalf of J.E.D. Lorah believed the masturbatory incident did not "represent a . . . significant risk factor in terms of [J.E.D.'s] potential for sexual recidivism." Although Lorah diagnosed J.E.D. with Pedophilia, he concluded J.E.D. "no longer m[et] the statutory criteria for a sexually violent predator and is . . . not highly likely to offend in the immediate future."
In his oral opinion, the judge noted that, in many respects, Lorah's testimony agreed with that of Voskanian and Paolillo. The judge further noted that while Lorah believed J.E.D. could receive outpatient counseling, Lorah acknowledged that J.E.D.'s "narcissistic attitudes . . . would pose some problems in relapse prevention . . . ." The judge determined that J.E.D. continued to "suffer from a mental abnormality and personality disorder," and that he was "highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and particularly treatment." The judge further decided that the treatment team's recommendation of continued Phase Three treatment was appropriate, and that J.E.D. could apply for participation in the "Therapeutic Community" if he and his treatment team believed it was appropriate. He ordered J.E.D.'s continued commitment and this appeal followed.
We briefly set forth the standards that guide our review.
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.
[In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]
The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The trial "judge's determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion[,]" In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)), "or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007) (citations omitted).
Here, the judge implicitly accepted the expert opinions offered by Voskanian and Paolillo, i.e., that J.E.D. continued to demonstrate an inability to control his impulsive sexual conduct. See W.Z., supra, 173 N.J. at 132 ("[W]e see no basis for separating the court's determination of a person's likelihood to engage in acts of sexual violence from the court's assessment of the person's loss of control over his or her harmful behavior specifically . . . ."). While Lorah opined that the masturbatory incident was not predictive of future risk, both Voskanian and Paolillo disagreed. Paolillo specifically explained how this impulsive conduct demonstrated J.E.D.'s inability to control himself, thereby predicting future risk. Although the Static-99R test placed J.E.D. in the low to moderate risk group, the judge was certainly free to consider all the evidence in determining whether the State had carried its burden of proof.
Regarding J.E.D.'s alternative argument, conditional discharge is predicated upon the court finding that "the person will not be likely to engage in acts of sexual violence because the person is amenable to and highly likely to comply with a plan to facilitate the person's adjustment and reintegration into the community so as to render involuntary commitment as a sexually violent predator unnecessary . . . ." N.J.S.A. 30:4-27.32(c)(1). "If the difficult commitment burden is satisfied, release should follow only 'when a court is convinced that [the individual] will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with the plan for safe reintegration into the community.'" T.J.N., supra, 390 N.J. Super. at 226 (quoting W.Z., supra, 173 N.J. at 130).
In this case, Paolillo testified that, although J.E.D. had been in Phase Three treatment for several years, and had been compliant, participative and made progress, he still needed to address "core issues." Central to Paolillo's testimony was J.E.D.'s inability to comply with rules of behavior expected within the STU. On the record presented, we find no reason to remand the matter for consideration of conditional release planning.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION